PROPERTY LAW
The law of property (or patrimony) can be described as the law dealing with a person's patrimony (all his/her
assets). Patrimonial law is divided into law of things, the law of succession, the law of obligations and
intellectual property law.
Patrimonial law therefore regulates all assets which forms part of a person's estate. Property includes a variety
of assets, such as things (for example, land and a motor vehicle), personal rights (creditor's rights/claims –
for example the right to claim the purchase price in terms of a contract of sale) and immaterial property
rights (for example, copyrights and patent rights).
"Things" can either be classified as movable or immovable property. In principle, immovable property consist
of land and everything which is permanently attached to land, including natural attachments like plants and
artificial fixtures like buildings and structures which are permanently attached to land. Everything else is
classified as movable property.
This distinction has significance in considering the formalities and requirements for transfer of ownership.
Ownership of movable property is transferred by means of simply delivering the object to the next person with
the specific intention to transfer ownership.
In South Africa, on the other hand, the transfer of ownership in immovable property is governed by legislation
and specific in terms of Section 16 of the Deeds Registries Act 47 of 1937 which stipulates that transfer must
be affected by Deed of Transfer, registered by the Registrar of Deeds. The purpose of the mentioned
registration process is twofold:
 To transfer ownership of immovable property; and
 To place the registered owner of land in a position to prove his ownership easily, by producing his
registered deed of transfer.

Although the South African system of land registration is of a high standard, it does not always furnish a
complete or accurate picture of the rights in respect of land and mistakes do sometimes occur but it remains,
however, a reliable source of information about the legal position of immovable property.
Property law further deals with all the remedies an owner can use to protect his/her ownership.
Bond Registration Process
The process is as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Receive bond instruction;
Contact client and accept terms of bond;
Request draft deed and guarantee requirements from
transfer attorneys if applicable.
If registering a further bond, we request the original title
deed from the bank's security department.
Drawing of documentation upon receipt of the above.
Signing of documentation.
Issuing of guarantees to transfer attorneys.
Sending original signed bond documents to the bank for
approval to proceed with lodgement.
The transfer attorney attends to getting a clearance
certificate from the municipality as well as a transfer
duty receipt from the receiver of revenue.
Liaising with transfer attorney to lodge transaction
simultaneously at the Deeds Office.
Lodging documents at the Deeds Office. (Process takes
10 to 14 working days)
We are notified when transaction is on preparation for
registration at the Deeds Office (2 days).
Registration of bond & transfer of ownership.
Money is paid out by banks on the following day
provided all systems are on line.
Transfer Process
The process is as follows:
1.
2.
3.
4.
5.
6.
Receive original purchase agreement or copy via fax, electronically.
Acknowledge receipt of instruction to all parties.
Verify validity of contract & diarise suspensive conditions in contract if any.
Follow up suspensive conditions of contract.
Request cancellation figures on seller's bond account from financial institution, if not a cash sale.
After all conditions have been met, request clearance figures from municipality.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
Upon receipt of cancellation figures from bank, documents will be drawn.
Send guarantee requirements & draft of title deed to bond registration attorney.
All parties sign transfer documents.
Collect transfer duty, transfer & bond costs from purchaser, if not included in bond.
Paying cancellation attorneys for cancellation costs, send guarantees to cancellation attorneys.
Paying transfer duty to Receiver of Revenue.
Collecting transfer duty receipt 4 days after.
Collecting clearance certificate from municipality.
Liaising with bond- & cancellation attorney (if not our firm) to lodge simultaneously.
Lodging documents in Deeds Office. (Process takes 10 to 14 working days).
Receiving notification from Deeds Office when transaction is on prep (2 days prior to registration).
Getting approval from bond & cancellation attorneys to proceed with registration.
Property is transferred to purchaser on date of registration in the Deeds Office.
Paying out in terms of guarantees issued.
Payment is normally received electronically and may take up to 2 days after notification of registration
was given.
Existing Bond on Property
(i) The Conveyancer will simultaneously with the above, address a letter to the current bondholder advising the
bondholder of the fact that the property has been sold and calling upon the bondholder to forward the Title
Deed to the Conveyancer. He will simultaneously ask the bondholder to advise the Conveyancer of the amount
required to pay off the existing bond on registration of transfer and request the bondholder to instruct his own
attorneys to prepare an appropriate Consent to Cancellation of the existing bond. This latter form will be
prepared by the bondholder's attorneys, signed by the bondholder and returned for purpose of subsequent
lodgement at the Deeds Office. As most financial institutions are unable to trace the file in which the Title deed
and Bond are retained without an account number, it is important that the particulars of the bond account
number be reflected in the information section of the Deed of Sale.
(ii) The Conveyancing Attorney will in due course receive a response to his letter to the existing bondholder.
This letter would have enclosed the Title deed and would have stated the amounts required by the bondholder
on cancellation of the bond. Should the purchase price be sufficient, the Conveyancing attorney will address a
letter to the attorneys representing the bondholder, promising payment of the amount required on date of
registration at the Deeds Office.
Please note
Under normal circumstances, this whole process can take up to eight weeks. There are however, many
cases where certain aspects can ‘not be anticipated which may cause a transaction to be registered at a
later period as expected. In such cases, we do act pro—actively and together with all the parties
involved, find the best possible solution to keep such a delay to a minimum.
Pitfalls

















Breach of contract.
Original title deed or bond deed lost.
Personal information incorrect of omitted.
Await successful bond approval.
Purchase agreement completed incorrectly.
Interdict registered against property sold.
Valuation by financial institution is less than selling price.
Municipality delays in issuing clearance figures.
Electricity certificate has not been issued.
Seller in arrears on rates, water and electricity.
Delay in providing cancellation figures on existing bond by financial institution.
Insufficient funds i.e. transfer duty, attorney cost.
Outstanding tax issues.
Pending Legal action
Fica not in order.
NHBRC certifcate’s to be obtained.
Subject to the sale of an existing property.
Terminology used in the process
 Conveyancer:
It is a third party appointed by the seller to represent them to facilitate the conveyancing process (transfer of
ownership). Within the South African Law, only attorneys who were admitted by the High Court as
conveyancers may handle transfer of ownership on behalf of parties thereto as well as bond registrations on
behalf of financial institutions.
 Transfer:
It is the process in which ownership changes from the seller to the purchaser
Transfer of the Property
To enable the Conveyancer to prepare the transfer documents, he will require the Purchaser's & Seller's details
together with copies of their Identity documents, marriage certificates, ANC's, divorce orders, etc. After
receiving these documents & the original Title Deed, the Conveyancer will prepare the transfer documents &
his proforma account. The Parties will then be called upon to sign the documents and the Purchaser will be
called upon to pay the Conveyancer's costs. These costs will include:
■The Conveyancer's fees: these fees are charged in accordance with a tariff issued by the law society.
■Transfer Duty: this is a tax payable to the state on all transfers of immovable property.
■Rates: the purchaser will be liable for rates from the date of registration of the property in his name.
 Transfer Duty:
This a government tax on the sale of any immovable property, based on the selling price or market value of
the property, if the parties to the sales agreement is related, payable by the purchaser to SARS.
On payment of the transfer duty a transfer duty receipt is issued by SARS which must be presented to the
Registrar at the Deeds Office before registration can take place. No transfer duty is payable on a sales
transaction of R500,000-00 or less.
 Transfer Fee:
It is the fee charged by the Conveyancer for transferring ownership to the buyer. This fee is based on tariffs
recommended by the Law Society.
 Mortgage Bond:
When money is borrowed from a financial institution, a mortgage bond is registered on the specific property in
the Deeds Office which acts as the financial institution's security in payment of debt and prevents the owner of
the property from selling the property until such bond has been cancelled in the Deeds Office.
A Bond registration fee is payable to the Conveyancer handling the bond registration as recommended by the
Law Society.
 Purchase agreement:
It is a written document in which the purchaser agrees to buy certain real estate and the seller agrees to sell
under stated terms and conditions.
 Suspensive conditions:
It is contingencies that suspend the contract until certain events occur are known as "suspensive conditions".
I.e. purchaser must obtain a mortgage loan from a financial institution within a certain period. Should such
conditions not be met, the contract is considered null and void.
Signature and Costs
When these documents are ready, the parties will be contacted by the Conveyancing attorneys with a view to
arranging an appointment for the signature of the documents. On signature of the documents, the
Conveyancing attorneys will ask the purchaser to settle the transfer costs. The account which the Conveyancer
will present will comprise four elements being the following:
(i) The Conveyancer's own fees plus VAT thereon.
(ii) The cost of the valuation certificate (See paragraph 4.2).
(iii) The transfer duty.
(iv) Deeds Office Fee.
It is important that the purchaser settle these costs at least one month before scheduled date of transfer, as
the Conveyancer is required to pay the transfer duty to the Receiver of Revenue before one may approach the
Deeds Office. The Conveyancer will simultaneously recover from the purchaser his pro rata share of rates and
taxes in order that a Rates clearance can also be obtained. As soon as these costs have been paid, the
Conveyancer will forward his cheque plus supporting documentation to the Receiver of Revenue for the issue of
a transfer duty receipt. A cheque will simultaneously be sent to the Municipal Authority for purposes of the
issue of a Rates Clearance Certificate.
Purchaser's Bond
In the interim the Conveyancing attorney will receive notification from Attorneys instructed by the financial
institution who will be granting the purchaser a bond advising of their identity and of the nature and extent of
their instructions. The Conveyancing attorney will immediately send to these "bond attorneys", a draft copy of
the new title deed of the property. This document is termed the "flysheet". This document enables the bond
attorneys to determine the description of the property which is to be bonded and furthermore to determine the
full details of the purchaser. The bond attorneys will then prepare their own documentation and arrange for the
purchaser to call at their offices to sign their papers and pay their costs.

Clearance Certificate:
It is a certificate issued by the local municipality on the property being sold stating that all rates and taxes are
paid up to date. If the seller is in arrears such outstanding amounts will first have to be settled in full by the
seller before the transfer process can proceed.
 Sectional Title:
To provide for the division of buildings into sections and common property and for the acquisition of separate
ownership in sections coupled with joint ownership in common property; the control of certain incidents
attaching to separate ownership in sections and joint ownership in common property; the transfer of ownership
of sections and the registration of sectional mortgage bonds over, and real rights in, sections; the conferring
and registration of rights in, and the disposal of, common property; and the establishment of a sectional titles
regulation board; and to provide for incidental matters.
 Lodge:
A Conveyancer is ready to submit (lodge) the necessary documents to the Deeds Office with regards to the
transfer of the property and/or mortgage bond registration, as soon as all documents are ready according to
the requirements set out by the Deeds Office.
 On Prep:
After the examiners at the Deeds Office are satisfied on their examination of the property to be transferred,
they will notify the Conveyancer he/she must prepare their documents for registration.
 Registration:
Registration takes place when the Registrar at the Deeds Office signs the title deed that confirms change of
ownership. It is the entry of facts in a register for record purposes.
 Notification of Registration:
All parties are notified in writing/ electronically by the conveyancer of when the property was transferred to the
new owner.
 Notification to City council and Body Corporate:
Council will be notified in writing/ electronically by the conveyancer of when the property was transferred to
the new owner. From thereon the new owner must make sure that he receive a rate and taxes account from
the council.
Final Phase
When everybody is ready (the bond attorneys documents are signed, the bond cancellations attorneys consent
to cancellations in their possession and duly signed by the bond holder, the transfer duty receipt and rates
clearance have been received), the Conveyancing attorney will contact all the other Attorneys involved and
arrange simultaneously "lodgement" at the Deeds Office. On the pre-arranged date all the Attorneys
simultaneously hand their folders of paper into the Deeds Office. These papers are then collated by the Deeds
office and allocated to a specific Examiner. The Deeds Office Examiner inspects all the documents, and if found
to be on order, approves the documents for registration. This procedure in the Deeds Office takes
approximately ten days. If any difficulties are discovered in any of the papers, the documents are 'rejected". If
the documents are approved for registration, the Conveyancing Attorney, after ensuring that all the finances
for the transaction have either been paid or alternatively secured, will arrange with all the Attorneys concerned
for the actual registration to take place. At the moment of registration, ownership passes from the seller to the
purchaser and the transaction is complete.